PATGOV · The governance of the European patent system

The governance of the European patent system

The functioning of the European patent system has been criticized from various angles. Some authors have addressed performance deficiencies of the system (decreasing quality of patents, high patent fees). Others have questioned the ethical appropriateness of patentability of inventions in specific areas (e.g. stem cells, human embryos, and genetically modified organisms). The system has also been criticized for not being able to deal with new technologies, such as large parts of biotechnology, that show characteristics of post-normal science. From the perspective of governance studies, focusing on accountability and legitimacy, it has been argued that the European patent system is in fact a very closed system, an epistemic community of legal-technical experts who at best interact with directly involved stakeholders (i.e. patent applicants) but hardly beyond the patent system as such. Similar criticism comes from Responsible Research & Innovation (RRI) scholars, who have pointed at the lack of inclusion of and responsiveness to societal stakeholders. In defence of the patent system, it has been argued that the system is not meant to evaluate broader societal issues and should primarily be assessed on its contribution to innovation. The traditional patent paradigm is that inventors need to be rewarded for their efforts by creating a long-term, enforceable, exclusive right to the use of their invention. Within this paradigm the role of the patent system is straightforward. i.e. to establish whether the basic requirements for patentability (novelty, inventive step, and industrial applicability) are met. The links between patenting and innovation are however much more complicated than this basic reward idea presupposes. The empirical evidence on the link between innovation and patents is far from conclusive. Exclusive rights create monopolies which distort markets. Patents impede the combination of new ideas/inventions across actors/sectors (open innovation) and raise transaction costs (the anti-commons problem). Another possibility is therefore to see patents as regulatory interventions by the state on behalf of society, in service of society’s interest. Granting of patents comes with (economic, ethical) trade-offs and is a balancing act. Patents are privileges, not rights. This is the view taken in the PATGOV project. The project objective was to establish which changes are needed in the governance of the European patent system in order to enhance its responsiveness to societal stakeholders and to open it up to broader societal considerations.

Data: CORDIS, © European Union